Campus Prevention Network Legal Brief

March 2020

Sixth Circuit Explains “Clearly Unreasonable” Response to Sexual Harassment 

While the new Title IX regulations loom large, U.S. Circuit Courts of Appeal continue to issue significant Title IX decisions (see the January 2020 Higher Ed Brief) concerning how schools are required to address sexual harassment under Title IX. The Sixth Circuit’s March 11, 2020 decision provides an in-depth analysis of what it means for a school to be “deliberately indifferent” — defined as a “clearly unreasonable” response — to incidents of sexual harassment, which can trigger liability for monetary damages under the U.S. Supreme Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). 

In the Sixth Circuit’s most recent decision, both the complainant (Foster) and respondent met as graduate students in an executive MBA (EMBA) program and became friends. However, the respondent began expressing a romantic interest in Foster and making unwanted physical contact with her. After months of receiving unwanted sexual advances and 900 text messages from the respondent, Foster reported to the university’s Title IX office that the respondent was sexually harassing her.  

The university began an investigation, developed interim accommodations for Foster, and instructed the respondent not to contact Foster directly or indirectly. A week later, the respondent sent Foster a one-word text message that said “Really.” Foster reported this one-word message to the university’s investigator, who spoke to the respondent about violating the no-contact order. The respondent told the investigator that he sent the message to Foster by mistake and was sorry that it happened. 

The court found that the university “essentially let the respondent off with a warning for texting Foster.” After that he violated the no-contact order “in a more extreme, threatening fashion on Facebook” and the university “merely barred the respondent from class.” The respondent then emailed their classmates with “vulgar” references about Foster. 

The court concluded that the fact that the institution was effective in preventing further in-person sexual harassment of Foster “does not shield it from liability if, for example, it acted clearly unreasonably in responding to the respondent’s use of the phone and internet to harass Foster.” In other words, “An institution cannot avoid Title IX liability if some of its responses were adequate but others were clearly unreasonable.” Here’s how the court viewed these responses:

[A]n educational institution’s complete failure to respond to a complaint or request for accommodation is not the sine qua non of Title IX liability. Any response that is “clearly unreasonable,” and subjects the complainant to further harassment, puts the funding recipient in violation of the law. Davis, 526 U.S. at 649. In this vein, the University cannot avoid liability as a matter of law when it successfully thwarts one type of sexual harassment but acts unreasonably to stop another.

Simply doing “something” will not avoid Title IX liability. Instead, the university must take steps that are reasonably calculated to prevent further harassment. Thus, the court concluded that a jury should answer the question of whether the university’s ineffective responses to the respondent’s repeated violations of its no-contact order “emboldened” the respondent to keep harassing and retaliating against Foster.

Exposing a fracture in the Sixth Circuit’s approach to these cases, the dissenting opinion in this case had a different take on the university’s response, stating that the university “did its level best to protect Foster from this student harasser.” The dissent then made a dire prediction that: 

If there is one thing sure to come out of today’s decision, it will be a university’s decision to expel first and to ask questions later. Because these cases often generate triable issues of fact, a pattern accentuated if we dilute deliberate indifference into mere reasonableness, one wonders when the day will come that two different juries will find that the same school loses coming and going over the same incident—by insufficiently protecting the rights of the victim in one case and by insufficiently protecting the rights of the accused in the other. 

This decision highlights the careful balancing act that colleges and universities must perform to protect the safety and procedural rights of its students, which will likely become more difficult when conduct hearings become more like courtrooms under the new Title IX regulations. Now more than ever, prevention is the cure.

This Higher Ed Brief (“Brief”) is provided solely for informational and educational purposes and shall not represent otherwise. 

This Brief does not provide and is not intended to provide legal advice and is not a substitute for legal advisors. 

Please consult with legal counsel to ensure your institution’s compliance with applicable legal requirements.